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Date: 05-22-2019

Case Style:

Barrington Music Products, Inc. v. Music & Arts Center, et al.

Case Number: 18-2945

Judge: Bauer

Court: United States Court of Appeals for the Seventh Circuit on appeal from the Northern District of Indiana (St. Joseph County)

Plaintiff's Attorney: Mark F. Crinit, Sean J. Quinn, John D. LaRue, Stephen M. Judge, Paul Edgar Harold

Defendant's Attorney: Daniel R. Appelget, Jennifer L. ElBenni, Jeffery A. Johnson


Barrington Music Products (Barrington)
sued Music & Arts Centers (Music & Arts), Guitar Center
Stores, Inc. (Guitar Center), Woodwind & Brasswind Inc.
(Woodwind), and Eastman Music Company (Eastman), for
infringing on Barrington’s “Vento” trademark with their use of
the trademark “Ventus.” After being awarded damages for
2 No. 18‐2945
sales made through eponymous Guitar Center stores only,
Barrington moved to amend the judgment to include sales
from Music & Arts and Woodwind in the damage calculation.
The district court denied Barrington’s motion and for the
reasons that follow, we affirm.
Guitar Center markets and sells musical instruments. In
2010, it created a new brand of woodwind and brass instruments
produced by Eastman—“Ventus.” Barrington owns the
trademark “Vento,” which is used in relation to instruments it
sells.1 Barrington began using its mark in commerce in May of
2009 and achieved gross sales just shy of $700,000. Barrington
filed for registration of its “Vento” mark on January 6, 2010. In
March 2011, Guitar Center began selling flutes, trumpets, alto
saxophones, tenor saxophones, and clarinets using the
“Ventus”mark, with gross sales totaling about $5 million.
Barrington filed its complaint for trademark infringement
naming Eastman and, as separate defendants, Music & Arts,
Guitar Center, and Woodwind. The evidence demonstrated the
total “Ventus” sales by the latter defendants was:
Music & Arts $ 4,906,292
Woodwind $ 37,680
Guitar Center $ 3,228
Total $ 4,947,200
1 “Ventus” is the Latin word for wind. “Vento” is the Italian word for wind.
No. 18‐2945 3
The jury found that only the sales made by Guitar Center
stores were infringing and awarded Barrington the total
amount of Guitar Center sales—$3,228. The jury instructions
referred to “defendants” in the plural, and included the
Each defendant bears the burden of proving the
direct expenses that it incurred in producing,
marketing, and selling the products at issue. If a
defendant fails to prove such direct expenses,
you must find the amount of its gross revenues
as the amount of profits.
After the judgment was entered, Barrington filed a motion
pursuant to Federal Rule of Civil Procedure 59(e) asking the
district court to amend the damages award. Barrington had
discovered that the only distinct corporate entity was Guitar
Centers, Inc., while Music & Arts and Woodwind were each
divisions of Guitar Center. Barrington moved the court to
amend the damages award to $4,947,200, the total sales for the
“Ventus” mark by all of the Guitar Center owned stores. The
district court denied the Rule 59(e) motion.
A Rule 59(e) motion can be granted only where the movant
clearly establishes: “(1) that the court committed a manifest
error of law or fact, or (2) that newly discovered evidence
precluded entry of judgment.” Cincinnati Life Ins. Co. v. Beyrer,
722 F.3d 939, 954 (7th Cir. 2013). Rule 59(e) “does not provide
a vehicle for a party to undo its own procedural failures, and
it certainly does not allow a party to introduce new evidence
or advance arguments that could and should have been
4 No. 18‐2945
presented to the district court prior to judgment.” Id. at 954
(citing Bordelon v. Chi. Sch. Reform Bd. of Trs., 233 F.3d 524, 529
(7th Cir. 2000)).
We review a district court’s denial of a Rule 59(e) motion
for an abuse of discretion. See Obriecht v. Raemisch, 517 F.3d
489, 492 (7th Cir. 2008); Sigsworth v. City of Aurora, 487 F.3d 506,
511 (7th Cir. 2007). “A court abuses its discretion only when no
reasonable person could agree with the decision to deny
relief.” Nelson v. Napolitano, 657 F.3d 586, 591 (7th Cir. 2011).
A jury verdict will not be set aside “if a reasonable basis
exists in the record to support the verdict, viewing the evidence
in the light most favorable to the prevailing party, and
leaving issues of credibility and weight of evidence to the
jury.” Kapelanski v. Johnson, 390 F.3d 525, 530 (7th Cir. 2004). A
jury’s verdict on damages “must stand unless there is no
rational connection between the evidence and the jury’s
award.” McNabola v. Chi. Transit Auth., 10 F.3d 501, 516 (7th
Cir. 1993).
Barrington named each division of Guitar Center as a
separate defendant rather than naming only Guitar Center.
This error persisted throughout the case and resulted in a
verdict form that listed each defendant separately. The jury
was instructed to determine whether each defendant violated
Barrington’s trademark, to list the amount of the damages, and
to determine whether the infringement was willful. The jury
found that only the sales made through Guitar Center stores
were infringing and awarded Barrington the exact amount of
the Guitar Center store sales as supported by the evidence.
No. 18‐2945 5
This error is not cause to amend the judgment under
Rule 59(e). The judgment was rationally supported by the
evidence, the amount of Guitar Center’s sales. The fact that
Guitar Center’s total revenue from the “Ventus” sales was
higher is not significant. The jury found the total amount of
infringing sales was $3,228, not $4,947,200. The damages are
accordingly based only on the amount of sales the jury found
to be infringing, and not the total gross sales of “Ventus”
Barrington gives us no reason to conclude that the jury’s
verdict would be different if it were aware Music & Arts and
Woodwind were merely divisions of Guitar Center rather than
distinct corporations. The jury found Music & Arts and
Woodwind did not infringe on the “Ventus” mark and there
was no basis to award Barrington their “Ventus” related sales.

The district court’s denial of the Rule 59(e) motion is

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